Amicus Curiae Brief — Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

No. 22-451

In the

Supreme Court of the United States

______________

LOPER BRIGHT ENTERPRISES, et al.

Petitioners,

v.

GINA RAIMONDO, in her official capacity as Secretary

of Commerce, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

AMICUS BRIEF OF THE AMERICAN CENTER

FOR LAW AND JUSTICE

IN SUPPORT OF PETITIONERS

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

JORDAN A. SEKULOW

COLBY M. MAY

LAURA B. HERNANDEZ

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave. NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Attorneys for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................ii

INTEREST OF AMICUS ........................................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT .............................................................. 4

I. Chevron Violates the APA ..................................... 5

II. Chevron Violates the Separation of

Powers……………………………………… ........... 6

A. Chevron Shifts Power from the

Legislative Branch to the Executive

Branch and thereby Threatens the

Nondelegation Doctrine... ............................... 7

B. Chevron Strips Power from the

Judiciary “to Say what the Law Is.” .............. 12

III.

Chevron Raises Due Process Concerns………13

IV.

Chevron Promotes Agency FlipFlopping and Instability in the

Law…………. .................................................. 14

CONCLUSION ......................................................... 21

ii

TABLE OF AUTHORITIES

Page(s)

CASES

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) ............................................... 11

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) (per curiam) ...................... 11

Becerra v. Mayor of Baltimore,

141 S. Ct. 2618 (2021) ........................................... 18

Biden v. Nebraska,

No. 22-506, 2023 U.S. Lexis 2793

(U.S. June 30, 2023) .............................................. 11

California v. Azar,

385 F. Supp. 3d 960 (N.D. Cal. 2019) ................... 18

Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc.,

467 U.S. 837 (1984) ................................... 4, 5, 8, 14

City of Arlington v. FCC,

569 U.S. 290 (2013) ..................................... 4, 19, 20

Crowell v. Benson,

285 U.S. 22 (1932) ............................................. 7, 13

iii

Fam. Plan. Ass’n of Me. v. United States HHS,

404 F. Supp. 3d 286 (D. Me. 2019) ........................ 17

FDA v. Brown & Williamson Tobacco Corp.,

529 U. S. 120 (2000) .............................................. 11

Field v. Clark,

143 U.S. 649 (1892) ................................................. 8

Gonzales v. Oregon,

546 U.S. 243 (2006) ............................................... 11

Guedes v. Bureau of Alcohol, Tobacco,

Firearms And Explosives,

140 S. Ct. 789 (2020) ....................................... 13, 19

Gundy v. United States,

139 S. Ct. 2116 (2019) ..................................... 10, 11

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) ................... 4, 14, 19

Indus. Union Dep't, AFL-CIO v. API,

448 U.S. 607 (1980) ................................................. 8

Int’l Brotherhood of Teamsters, Loc. 2785 v. Fed.

Motor Carrier Safety Admin.,

986 F.3d 841 (9th Cir. 2021) ................................. 15

iv

King v. Burwell,

576 U. S. 473 (2015) .............................................. 11

Kisor v. Wilkie,

139 S. Ct. 2400 (2019) ....................................... 6, 14

Marbury v. Madison,

5 U.S.(1 Cranch) 137 (1803) .................................. 12

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ................................................. 8

Massachusetts v. Bowen,

679 F. Supp. 137 (D. Mass. 1988),

aff’d, Massachusetts v. Sec’y of Health & Hum.

Servs., 899 F.2d 53 (1st Cir. 1990) ........................ 16

Mayor & City Council of Balt. v. Azar,

392 F. Supp. 3d 602 (D. Md. 2019) ....................... 17

Michigan v. EPA,

576 U.S. 743 (2015) ............................... 8, 10, 11, 13

Morton v. Ruiz,

415 U.S. 199 (1974) ................................................. 8

Mozilla Corp. v. FCC,

940 F.3d 1 (D.C. Cir. 2019).................................... 15

v

N. Pipeline Const. Co. v. Marathon Pipe Line Co.,

458 U.S. 50 (1982) (plurality op.). ......................... 12

Nat’l Cable & Telecommunications Ass’n v.

Brand X Internet Services,

545 U.S. 967 (2005) ............................................... 14

Nat’l Fam. Plan. & Reprod. Health Ass’n v.

Sullivan, 979 F.2d 227 (D.C. Cir. 1992). .............. 17

Nat’l Fam. Plan. & Reprod. Health Ass’n v.

Sullivan, No. 92-935(CRR), 1992

U.S. Dist. LEXIS 9421 (D.D.C. July 1, 1992) ....... 17

Nat’l Fed’n of Indep. Bus. v. OSHA,

142 S. Ct. 661 (2022) (per curiam) ....................... 11

New York v. Bowen,

690 F. Supp. 1261 (S.D.N.Y. 1988), aff’d,

New York v. Sullivan, 889 F.2d 401 (1989) .......... 16

Ohio v. Becerra, 577 F. Supp. 3d 678 (S.D. Ohio

2021), aff’d, 2022 U.S. App. LEXIS

3435 (6th Cir. Feb. 8, 2022) ................................... 18

Oregon v. Azar,

389 F. Supp. 3d 898 (D. Or. 2019)......................... 18

Oregon v. Cochran,

141 S. Ct. 1369 (2021) ........................................... 18

vi

Pereira v. Sessions,

138 S. Ct. 2105 (2018) ............................................. 4

Perez v. Mortgage Bankers Ass’n,

575 U.S. 92 (2015) ............................................. 4, 13

Planned Parenthood Fed’n of Am. v. Bowen,

687 F. Supp. 540 (D. Colo. 1988), aff’d,

Planned Parenthood Federation of America v.

Sullivan, 913 F.2d 1492 (10th Cir. 1990) ............. 16

Rust v. Sullivan,

500 U.S. 173 (1991) ................................... 14, 16, 17

Smiley v. Citibank (S.D.), N.A.,

517 U.S. 735 (1996) ............................................... 14

United States v. Mead,

533 U.S. 218 (2001) ................................................. 4

Utility Air Regulatory Group v. EPA,

573 U. S. 302 (2014) .............................................. 11

Washington v. Azar,

376 F. Supp. 3d 1119 (E.D. Wash. 2019) .............. 17

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ........................................... 11

vii

STATUTES

5 U.S.C. § 706 .............................................................. 5

Public Health Service Act of 1970, Pub. L. No.

91-572, 84 Stat. 1506 (codified as amended 42

U.S.C. §§ 300-300(a)(6))......................................... 15

OTHER AUTHORITIES

65 Fed. Reg. 41,270 (July 3, 2000)............................ 17

Aditya Bamzai, The Origins of Judicial

Deference to Executive Interpretation,

126 Yale L.J. 908 (2017) .......................................... 5

Brett M. Kavanaugh, Fixing Statutory

Interpretation, Judging Statutes,

129 Harv. L. Rev. 2118 (2016)................. 4, 9, 10, 12

Cass R. Sunstein, Beyond Marbury:

The Executive’s Power to Say What the Law Is,

115 Yale L.J. 2580 (2006) ...................................... 13

Christine Kexel Chabot, Selling Chevron,

67 Admin. L. Rev. 481 (2015) ................................ 12

Chuck Schumer (@SenSchumer),

Twitter (June 30, 2023, 10:59 AM) ....................... 10

viii

David Barron & Elena Kagan,

Chevron’s Nondelegation Doctrine,

2001 Sup. Ct. Rev. 201 (2001) ................................. 6

Ensuring Access to Equitable, Affordable,

Client-Centered, Quality Family Planning

Services, 86 Fed. Reg. 56144 (Oct. 7, 2021)

(to be codified at 42 C.F.R. pt. 59)......................... 18

Federalist No. 51 (James Madison)

(J. & A. McLean eds., 1788) .................................. 10

Gary Lawson & Stephen Kam, Making Law Out of

Nothing at All: The Origins of the Chevron

Doctrine, 65 Admin. L. Rev. 1 (2013) ...................... 4

Jack M. Beerman, End the Failed Chevron

Experiment Now: How Chevron Has Failed and

Why It Can and Should Be Overruled,

42 Conn. L. Rev. 779 (2010) .............................. 4, 19

John F. Duffy, Administrative Common Law in

Judicial Review, 77 Tex. L. Rev. 113 (1998) .......... 6

Jonathan Turley, Congressional Democrats Beg

Biden to Nullify their Existence,

The Hill (May 23, 2023)........................................... 9

ix

Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts,

116 Mich. L. Rev. 1 (2017) ..................................... 12

Patrick J. Smith, Chevron’s Conflict with the

Administrative Procedure Act,

32 Va. Tax Rev. 813 (2013) ................................. 4, 6

Philip Hamburger, Chevron Bias,

84 Geo. Wash. L. Rev. 1187 (2016) ................... 4, 13

Project Grants for Family Planning Services,

36 Fed. Reg. 18,465 (Sept. 15, 1971) ..................... 16

Richard J. Pierce, Jr., The Combination of Chevron

and Political Polarity Has Awful Effects,

70 Duke L.J. Online 91 (2021) .............................. 15

Richard W. Murphy, Abandon Chevron and

Modernize Stare Decisis for the Administrative

State, 69 Ala. L. Rev. 1 (2017) ................................. 4

Robert A. Anthony, Which Agency Interpretations

Should Bind Citizens and the Courts?,

7 Yale J. on Reg. 1 (1990) .................................. 5, 13

Robert A. Katzmann, Judging Statutes (2014) .......... 9

x

Standards of Compliance for Abortion-Related

Services in Family Planning Service Projects,

58 Fed. Reg. 7,462 (Feb. 5, 1993) .......................... 17

Statutory Prohibition on Use of Appropriated Funds

in Programs Where Abortion is a Method of Family

Planning; Standard of Compliance for Family

Planning Services Projects, 53 Fed. Reg. 2,922

(Feb. 2, 1988). ........................................................ 16

Stephen Breyer, Judicial Review

of Questions of Law and Policy,

38 Admin. L. Rev. 363 (1986) .............................. 4, 6

Stephen Breyer, Making Our Democracy Work: A

Judge’s View 110 (2010). ......................................... 9

The Federalist No. 37 (James Madison) (J. & A.

McLean eds., 1788) .................................................. 8

The Federalist No. 47 (James Madison) (Clinton

Rossiter ed., 1961) ................................................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 1................................................... 7

1

INTEREST OF AMICUS*

Amicus, the American Center for Law and Justice

(ACLJ), is an organization dedicated to the defense of

constitutional liberties secured by law. ACLJ

attorneys have frequently appeared before this Court

as counsel either for a party, e.g., Pleasant Grove City

v. Summum, 555 U.S. 460 (2009), or for amicus, e.g.,

Biden v. Nebraska, No. 22-506, 2023 U.S. Lexis 2793

(U.S. June 30, 2023). The proper resolution of this

case is a matter of utmost concern to the ACLJ and

more than 4500 supporters of its sister organization,

ACLJ Action, Inc. because of their commitment to

separation of powers and the stable rule of law.

SUMMARY OF THE ARGUMENT

With Congress increasingly supine, and the

executive branch asserting ever more brazen claims of

power to set national policy, the federal judiciary is all

that stands between the American people and the

growing threat of tyranny from the administrative

behemoth. Eliminating Chevron deference is essential

to reducing the threat.

Few precedents have done more than Chevron to

distort the proper functioning of the three co-equal

branches of government. Chevron effectuated a

* No counsel for any party in this case authored this brief in whole

or in part. No person or entity aside from Amicus, its members,

or its counsel made a monetary contribution to the preparation

or submission of this brief.

2

seismic shift in power to the executive branch from the

legislative and judicial branches of government.

Chevron runs afoul of both Congress’s Article I power

to set national policy and the federal judiciary’s

Article III power of judicial review.

Chevron’s core premise ⸻that Congress intended

administrative agencies to provide determinative

interpretations of ambiguous statutory provisions ⸺is

devoid of support in the Administrative Procedure

Act. To the contrary, Congress clearly stated that the

courts retained sole authority over questions of law

arising under the APA, including interpretation of

federal statutes.

More significantly, Chevron’s core premise gives

Congress carte blanche to enact ambiguous

legislation, and implicitly condones expansive

delegations of authority to fill in gaps. Chevron

effectively rewards Congressional abdication of

responsibility and has accordingly proven to be a

significant threat to the nondelegation doctrine. Since

Chevron, the executive branch has become bolder in

fabricating specious claims of Congressional

authorization to set national policy. Publicly stated

support by Members of Congress for executive

trespass on Article I powers makes a mockery of the

Founders’ intention that each branch of government

would jealously guard its own powers from

encroachment by the other branches. The

extraordinary increase in “major questions doctrine”

cases over the past three years attests to the damage

Chevron has wreaked on Congress’s Article I power to

establish national policy in the manner provided in

the Constitution.

3

Chevron also divests the authority of the judiciary

to interpret federal law. Interpreting ambiguous

federal statutes that are administered by an agency

requires the courts to exercise independent judgment.

Chevron hamstrings judges from exercising that

judgment by allowing administrative agencies to

adopt any interpretation that is marginally

reasonable —even if it does not reflect the best view of

the statute.

Added to Chevron’s intrusions on the powers of coequal branches is its offense against due process

principles. Only in administrative law is there bakedin-the-cake systematic bias in favor of the

government.

Last but certainly not least, Chevron promotes

agency flip-flopping by requiring the same deference

to diametrically opposed agency interpretations of the

same statutory provision. The resulting instability in

the law comes with an enormous price tag in judicial

and litigant resources. Title X litigation is a

particularly notable example. Over a half century,

agency vacillation on the interpretation of a single

provision has resulted in eleven lawsuits, ten appeals

and two cert grants. Yet the meaning of the provision

could change again after the next election,

undoubtedly triggering another flurry of litigation.

Such instability is more characteristic of a banana

republic than a constitutional republic committed to

the rule of law. Flawed from its inception, Chevron v.

U.S.A., Inc. v. Nat. Res. Def. Council, Inc. should be

repudiated or overruled.

4

ARGUMENT

For almost four decades, the judiciary has been

required to defer to agency interpretations of

ambiguous federal statutes. Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). Chevron confers on agencies the power to

“speak with the force of law when [they] address

ambiguity in the statute or [fill] a space in the enacted

law.” United States v. Mead, 533 U.S. 218, 229 (2001).

Barrels of ink have been spilt detailing Chevron’s

manifold faults, both by legal scholars and Members

of this Court.1 Among the most compelling reasons to

1 See, e.g., Pereira v. Sessions, 138 S. Ct. 2105, 2120-21 (2018)

(Kennedy, J., concurring); Brett M. Kavanaugh, Fixing Statutory

Interpretation, Judging Statutes, 129 Harv. L. Rev. 2118, 215051 (2016) (reviewing Robert A. Katzmann, Judging Statutes

(2014)); Michigan v. EPA, 576 U.S. 743, 760 (2015) (Thomas, J.,

concurring); Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 10910 (2015) (Scalia, J., concurring in the judgment); City of

Arlington v. FCC, 569 U.S. 290, 313 (2013) (Roberts, C.J.,

dissenting); Stephen Breyer, Judicial Review of Questions of Law

and Policy, 38 Admin. L. Rev. 363, 380 (1986) (acknowledging

that Chevron rests on a “legal fiction”); Gutierrez-Brizuela v.

Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J.,

concurring); Richard W. Murphy, Abandon Chevron and

Modernize Stare Decisis for the Administrative State, 69 Ala. L.

Rev. 1 (2017); Philip Hamburger, Chevron Bias, 84 Geo. Wash.

L. Rev. 1187 (2016); Gary Lawson & Stephen Kam, Making Law

Out of Nothing at All: The Origins of the Chevron Doctrine, 65

Admin. L. Rev. 1 (2013); Patrick J. Smith, Chevron’s Conflict

with the Administrative Procedure Act, 32 Va. Tax Rev. 813, 814

(2013); Jack M. Beerman, End the Failed Chevron Experiment

Now: How Chevron Has Failed and Why It Can and Should Be

Overruled, 42 Conn. L. Rev. 779 (2010); Robert A. Anthony,

5

repudiate Chevron are: 1) its blatant conflicts with the

APA, the separation of powers, and due process

principles, and 2) the enormous havoc it has wreaked

on stability in the law and the attendant waste of

litigant and judicial resources. The toxic combination

of an increasingly emboldened administrative state

with a stultified Congress, including members who

applaud Executive Branch trespass on Congress’s

Article I powers, renders Chevron’s interment

imperative.

I. Chevron Violates the APA.

Chevron is premised on the textually indefensible

notion that Congress intended agencies to resolve any

ambiguity Congress left in a statute to be

implemented by an agency. Chevron, 467 U.S. at 84344. This premise is manifestly false. Congress

expressly stated that the judiciary retains sole

authority to “interpret ... statutory provisions.” 5

U.S.C. § 706 (“To the extent necessary to decision and

when presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional and

statutory provisions, and determine the meaning or

applicability of the terms of an agency action.”).

Members of this Court have joined numerous

scholars 2 recognizing the conflict between judicial

Which Agency Interpretations Should Bind Citizens and the

Courts?, 7 Yale J. on Reg. 1, 57 (1990).

2 See, e.g., Aditya Bamzai, The Origins of Judicial Deference to

Executive Interpretation, 126 Yale L.J. 908, 976-77 (2017)

(“Section 706 is best interpreted as an attempt to ... instruct

courts to review legal questions using independent judgment and

6

deference to agency interpretations and § 706. See,

e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2432 (2019)

(Gorsuch, J., joined by Thomas, Alito, and Kavanaugh,

JJ, concurring) (in deferring to administrative agency

interpretation, “the court is abdicating the duty

Congress assigned to it in the APA”); David Barron &

Elena Kagan, Chevron’s Nondelegation Doctrine, 2001

Sup. Ct. Rev. 201, 212 (2001) (“Chevron doctrine at

most can rely on a fictionalized statement of

legislative desire.”); see also Stephen Breyer, Judicial

Review of Questions of Law and Policy, 38 Admin. L.

Rev. 363, 380 (1986) (acknowledging that Chevron

rests on a “legal fiction”).

Chevron’s textual incompatibility with the APA is

just one of its many faults. Chevron also violates the

separation of powers.

II. Chevron Violates the Separation of Powers.

Separation of powers is an essential safeguard

against the threat to individual liberty that results

from the concentration of power in the hands of a

single branch. As James Madison wrote,

the canons of construction.”); Patrick J. Smith, Chevron’s

Conflict with the Administrative Procedure Act, 32 Va. Tax Rev.

813, 814 (2013) (“It is impossible to reconcile the requirement in

section 706 of the APA that ‘the reviewing court shall . . .

interpret . . . statutory provisions’ with Chevron’s holding that,

under step two, a reviewing court must accept an agency’s

‘permissible construction of the statute’ even if the agency

interpretation is not ‘the reading the court would have reached if

the question initially had arisen in a judicial proceeding.’”); John

F. Duffy, Administrative Common Law in Judicial Review, 77

Tex. L. Rev. 113, 193-99 (1998).

7

[no] political truth is certainly of greater

intrinsic value or is stamped with the

authority of more enlightened patrons of

liberty than [the separation of powers]. The

accumulation of all powers, legislative,

executive, and judiciary, in the same hands,

…may justly be pronounced the very

definition of tyranny.

The Federalist No. 47, at 301, 303 (James Madison)

(Clinton Rossiter ed., 1961). Chevron trenches upon

the Constitution’s separation of powers because it

divests the authority of the judiciary to interpret

federal law, and it has facilitated the exponential

growth of a politically unaccountable administrative

behemoth “alien to our system” of government. See

Crowell v. Benson, 285 U.S. 22, 57 (1932) (warning

against the constitutional violation that would result

from divesting the judiciary of its power to review

questions of law and conferring such power on an

administrative agency).

A. Chevron Shifts Power from the Legislative

Branch to the Executive Branch and

thereby Threatens the Nondelegation

Doctrine.

Chevron facilitates the unconstitutional delegation

of Congress’s powers. Article I of the Constitution

vests federal legislative power in Congress. U.S.

Const. art. I, § 1. Protecting legislative power is “vital

to the integrity and maintenance of the system of

8

government ordained by the Constitution.” Marshall

Field & Co. v. Clark, 143 U.S. 649, 692 (1892). The

nondelegation doctrine seeks to ensure that binding

legislative commands are the product of the legislative

process mandated by Article I. See Indus. Union Dep’t,

AFL-CIO v. API, 448 U.S. 607, 672-73 (1980)

(Rehnquist, C.J. concurring). The doctrine protects

one of the Constitution’s most foundational precepts:

the sovereignty of the American people and the

political accountability of those who govern. “The

genius of republican liberty seems to demand . . . not

only that all power should be derived from the people,

but that those entrusted with it should be kept in

dependence on the people.” The Federalist No. 37, at

4 (James Madison) (J. & A. McLean eds., 1788)

(quotations omitted); Field v. Clark, 143 U.S. 649, 692

(1892) (“That Congress cannot delegate legislative

power to the President is a principle universally

recognized as vital to the integrity and maintenance

of the system of government ordained by the

Constitution.”).

The Chevron Court conceded that when agencies

construe ambiguous statutes, they often are engaged

in “formulation of policy.” Chevron, 467 U.S. at 843

(quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)).

According the force of law to agency pronouncements

on matters of private conduct about which Congress

did not actually have an intent, shifts legislative

power to the agency. See Michigan v. EPA, 576 U.S.

743, 761 (2015) (Thomas, J., concurring). “Statutory

ambiguity thus becomes an implicit delegation of rulemaking authority, and that authority is used not to

find the best meaning of the text, but to formulate

9

legally binding rules to fill in gaps based on policy

judgments made by the agency rather than Congress.”

Id. See also Brett M. Kavanaugh, Fixing Statutory

Interpretation, Judging Statutes, 129 Harv. L. Rev.

2118, 2150-51 (2016) (reviewing Robert A. Katzmann,

Judging Statutes (2014)) (Chevron is “nothing more

than a judicially orchestrated shift of power from

Congress to the Executive Branch.”).

Chevron gives Congress carte blanche to enact

ambiguous legislation, and implicitly condones

expansive delegations of authority to fill in gaps.

Chevron has played a key role in the modern

administrative state in which the laws governing

Americans are increasingly “nothing more than the

will of the current President.” Stephen Breyer,

Making Our Democracy Work: A Judge’s View 110

(2010).

Members of Congress from the President’s party

are sometimes only too happy for the Executive

branch to implement major policy, no matter how

severe the trespass on Congress’s Article I powers.

Recently, no fewer than eleven Members supported

the President’s proposal to fabricate authorization

under the Fourteenth Amendment to avoid default on

the national debt. See Jonathan Turley, Congressional

Democrats Beg Biden to Nullify their Existence, The

Hill, (May 23, 2023) https://thehill.com/opinion/whitehouse/4012134-congressional-democrats-beg-bidento-nullify-their-existence.

Some Members of Congress even publicly excoriate

this Court for defending the separation of powers, and

Congress’s Article I powers. Senate Majority Leader,

Charles Schumer, called the Court’s decision in Biden

10

v. Nebraska a “disappointing and cruel” display of “the

callousness of the MAGA Republican-controlled

Supreme Court.”3 So much for the Founders’ intention

that each branch of government would zealously

guard its own power. See Federalist No. 51, at 4

(James Madison) (J. & A. McLean eds., 1788)

(“Ambition must be made to counteract ambition.”).

In the country the Framers envisioned, Congress

would jealously protect its power to set national

policy. Chevron facilitates Congress’s abdication of its

responsibility because it incentivizes Congress to pass

the buck to administrative agencies through

ambiguous

statutes.

Administrative

agencies

increasingly seize the opportunity to “be extremely

aggressive in seeking to squeeze [their] policy goals

into

ill-fitting

statutory

authorizations

and

restraints.” Kavanaugh, supra, at 2150; see also

Michigan, 135 S. Ct. at 2713 (Thomas, J., concurring)

(“[W]e should be alarmed that [the agency] felt

sufficiently emboldened by those precedents to make

the bid for deference that it did here.”); cf. Texas v.

Becerra, 623 F. Supp. 3d 696, 713 (N.D. Tex. 2022)

(rejecting HHS’s novel claim that the Emergency

Medical Treatment and Labor Acted preempted

Texas’s post-Dobbs law prohibiting certain abortions).

The significant rise in the Court’s “major

questions” cases is proof of agency abuse of Chevron

deference and the growing threat to the nondelegation

doctrine. See Gundy v. United States, 139 S. Ct. 2116,

2142 (2019) (Gorsuch, J., dissenting) (noting that

3 Chuck Schumer (@SenSchumer), Twitter (June 30, 2023, 10:59

AM),

https://twitter.com/SenSchumer/status/1674794719048781825.

11

although the major questions doctrine “is nominally a

canon of statutory construction, we apply it in service

of the [nondelegation principle]”); Michigan, 135 S. Ct.

at 2713 (Thomas, J., concurring) (lamenting the

“potentially unconstitutional delegations we have

come to countenance in the name of Chevron

deference”).

Within the past three terms, this Court has

invalidated as many administrative agency mandates

under the “major questions doctrine” as it did in the

previous two decades. 4 While not the sole cause,

Chevron enabled the recent spate of agency claims of

implicit “delegation running riot.” See Gundy, 139 S.

Ct. at 2138 (Gorsuch, J., dissenting) (quoting A.L.A.

Schechter Poultry Corp. v. United States, 295 U.S. 495,

4 See Biden v. Nebraska, No. 22-506, 2023 U.S. Lexis 2793 (U.S.

June 30, 2023) (rejecting the Secretary of Education’s claim of

authority to forgive federal student loan debt); West Virginia v.

EPA, 142 S. Ct. 2587, 2605 (2022) (rejecting EPA’s claim of

authority to restructure America’s energy market); Nat’l Fed’n of

Indep. Bus. v. OSHA, 142 S. Ct. 661, 665 (2022) (per curiam)

(rejecting OSHA’s claim of authority to issue a nationwide

vaccine mandate); Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485,

2489 (2021) (per curiam) (rejecting the CDC’s claim of authority

to issue a nation-wide eviction moratorium); King v. Burwell, 576

U. S. 473, 485-86 (2015) (rejecting IRS’s claim of authority to

rewrite rules for billions of dollars in healthcare tax credits);

Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014)

(rejecting EPA’s claim of authority over millions of small

greenhouse gas sources); Gonzales v. Oregon, 546 U.S. 243, 275

(2006) (rejecting Attorney General’s claim of authority over

controlled substances used for assisted suicide); FDA v. Brown &

Williamson Tobacco Corp., 529 U. S. 120, 159-60 (2000) (rejecting

FDA’s claim of authority over tobacco products).

12

551 (1935) (Cardozo, J., concurring)). Chevron must be

repudiated.

B. Chevron Strips Power from the Judiciary

“to Say what the Law Is.”

Article III vests “[t]he judicial power of the United

States” —and with it, the duty “to say what the law is”

—in the independent federal courts. Marbury v.

Madison, 5 U.S.(1 Cranch) 137, 177-78 (1803). “[O]ur

Constitution unambiguously … commands that the

independence of the Judiciary be jealously guarded.”

N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458

U.S. 50, 60 (1982) (plurality op.). Chevron was a

judicial forfeiture of Article III power.

Judicial determinations under Chevron usually

begin with a hunt for the elusive quality of ambiguity

in the relevant statutory language. “[N]o definitive

guide exists for determining whether statutory

language is clear or ambiguous” and “judges “have

wildly different conceptions of whether a particular

statute is clear or ambiguous.” Kavanaugh, supra, at

2138, 2152; Christine Kexel Chabot, Selling Chevron,

67 Admin. L. Rev. 481, 483 (2015) (noting that the

ambiguity requirement “confounds courts”). Most of

the time, the hunt is successful. See Kent Barnett &

Christopher J. Walker, Chevron in the Circuit Courts,

116 Mich. L. Rev. 1, 33-34 (2017) (sampling over 1,000

cases and concluding that courts of appeals find

ambiguity at Chevron step one 70% of the time).

Once a statutory provision is declared ambiguous,

judicial acceptance of the agency’s interpretation

“endow[s]” the agency’s views “with force of law where

13

Congress did not intend them to have such force.”

Robert A. Anthony, Which Agency Interpretations

Should Bind Citizens and the Courts?, 7 Yale J. on

Reg. 1, 57 (1990).

Interpreting federal statutes, including ambiguous

ones administered by an agency, “calls for an exercise

of independent judgment.” Michigan, 576 U.S. at 761

(Thomas, J., concurring) (quoting Perez v. Mortgage

Bankers Ass'n, 575 U.S. 92, 122 (2015). Chevron

hamstrings judges from exercising that judgment by

allowing administrative agencies to adopt any

interpretation that is marginally reasonable—even if

it does not reflect the best view of the statute.

Chevron thus wrests from Courts the ultimate

interpretative authority to ‘say what the law is’ and

hands it over to the executive.” Michigan, 576 U.S. at

761 (Thomas, J., concurring) (quoting Marbury, 5

U.S.(1 Cranch) at 177-78); see also Cass R. Sunstein,

Beyond Marbury: The Executive’s Power to Say What

the Law Is, 115 Yale L.J. 2580, 2589 (2006) (describing

Chevron as “counter-Marbury for the administrative

state”). This massive shift in power is “alien to our

system” of government, Benson, 285 U.S. at 57, and

tilts the playing field in favor of the government.

III.

Chevron Raises Due Process Concerns.

Chevron requires federal judges to place their

thumbs on the scales of justice in favor of the executive

branch. See Philip Hamburger, Chevron Bias, 84 Geo.

Wash. L. Rev. 1187, 1189 (2016); Guedes v. Bureau of

Alcohol, Tobacco, Firearms and Explosives, 140 S. Ct.

789, 790 (2020) (Gorsuch, J., concurring in the denial

14

of cert.). Chevron therefore offends due process

principles because it creates a “systematic judicial

bias in favor of the federal government, the most

powerful of parties, and against everyone else.” Kisor,

139 S. Ct. at 2425 (Gorsuch, J., concurring) (citation

omitted). Restoring de novo review of all statutory

interpretation issues, as the Constitution requires

and Congress reinforced in the APA, would ensure to

private parties the “neutral forum for their disputes

that they rightly expect and deserve.” Id. at 2448.

IV.

Chevron Promotes Agency Flip-Flopping

and Instability in the Law.

Under Chevron, instability in the law is viewed as

a standard feature rather than a corrosive bug. Smiley

v. Citibank (S.D.), N.A., 517 U.S. 735, 742 (1996)

(“[C]hange is not invalidating, since the whole point of

Chevron is to leave the discretion provided by the

ambiguities of a statute with the implementing

agency.”) (emphasis added). Because Chevron

precludes

courts

from

issuing

definitive

interpretations of ambiguous statutory provisions, the

law remains subject to the changing whims of agency

reinterpretations.

See

Nat’l

Cable

&

Telecommunications Ass’n v. Brand X Internet

Services, 545 U.S. 967, 982-85 (2005). Brand X

requires courts “to overrule their own declarations

about the meaning of existing law in favor of

interpretations dictated by executive agencies.”

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1150

(10th Cir. 2016) (Gorsuch, J., concurring).

15

Chevron encourages agency flip-flopping by

irrationally according equal deference to diametrically

opposed agency interpretations. See Rust v. Sullivan,

500 U.S. 173, 186 (1991) (“[We have] rejected the

argument that an agency’s interpretation is not

entitled to deference because it represents a sharp

break with prior interpretations of the statute in

question” (quoting Chevron, 467 U.S. at 862 )). As one

court recently said, “the agency . . . must consider

varying interpretations and the wisdom of its policy

on a continuing basis.” Int’l Brotherhood of Teamsters,

Loc. 2785 v. Fed. Motor Carrier Safety Admin., 986

F.3d 841, 850 (9th Cir. 2021), cert. denied sub nom.

Trescott v. Fed. Motor Carrier Safety Admin., 142 S.

Ct. 93 (2021) (cleaned up) (emphasis added).

Examples of agency flip-flopping abound and

result in enormous squandering of litigant and

judicial resources. See, e.g., Mozilla Corp. v. FCC, 940

F.3d 1, 17 (D.C. Cir. 2019) (describing FCC’s 15-year

vacillation on whether internet service providers are

“common carriers,” under the Communications Act of

1934.). See also generally Richard J. Pierce, Jr., The

Combination of Chevron and Political Polarity Has

Awful Effects, 70 Duke L.J. Online 91, 92 (2021)

(describing administrative agency flip-flops on major

national policies).

The tale of Title X litigation illustrates forcefully

how Chevron causes long-term instability in the law

at an enormous toll in litigant and judicial resources.

Enacted in 1970, Title X is a Spending Clause

program dedicated to funding family planning

16

services. 5 The Department of Health and Human

Services (HHS) see-sawed on its interpretation of a

single statutory provision, §300a-6, for over a half

century.

Section §300a-6 provides that “[n]one of the funds

appropriated under this subchapter shall be used in

programs where abortion is a method of family

planning.” Congress did not specify whether §300a-6

applied to abortion counseling, referral, and advocacy,

or how to ensure that funds are not used “in programs

where abortion is a method of family planning.” Rust,

500 U.S. at 184.

HHS

therefore

implemented

regulations

interpreting §300a-6, alternating between proabortion and pro-life interpretations over the course of

a half dozen presidential administrations. For the first

18 years, HHS interpreted §300a-6 to prohibit only the

actual performing of abortion, but to otherwise permit

pro-abortion counseling and referrals.6

In 1988, HHS changed its policy and issued

regulations that barred funding recipients from

providing abortion-related information or abortion

referrals. 7 The 1988 Rule further required physical

and financial separation between Title X-funded

5 Public Health Service Act of 1970, Pub. L. No. 91-572, 84 Stat.

1506 (codified as amended 42 U.S.C. §§ 300-300(a)(6)).

6 Project Grants for Family Planning Services, 36 Fed. Reg.

18,465, 18,466 (Sept. 15, 1971).

7 Statutory Prohibition on Use of Appropriated Funds in

Programs Where Abortion is a Method of Family Planning;

Standard of Compliance for Family Planning Services Projects,

53 Fed. Reg. 2,922, 2,927 (Feb. 2, 1988).

17

services and any abortion-related services. 8 The

regulations were challenged in three separate

lawsuits with the circuits splitting on whether the

regulations were a permissible interpretation of

§300a-6. 9 This Court granted review to resolve the

split in Rust v. Sullivan. 10 Holding that §300a-6 is

ambiguous, and applying Chevron, this Court upheld

the 1988 regulations. 500 U.S. at 186-87.

Shortly after Rust, President George H. W. Bush,

apparently disagreeing with the Court’s decision in

Rust, issued a directive to the HHS Secretary,

directing adherence to four principles “compatible

with free speech and the highest standards of medical

care.” Nat’l Fam. Plan. & Reprod. Health Ass’n v.

Sullivan, 979 F.2d 227, 230 (D.C. Cir. 1992). HHS

therefore issued interim regulations,11 reverting back

8 Id. at 2,939.

9 New York v. Bowen, 690 F. Supp. 1261 (S.D.N.Y. 1988), aff’d,

New York v. Sullivan, 889 F.2d 401 (1989) (upholding the 1988

regulations as a permissible interpretation of §300a-6.);

Massachusetts v. Bowen, 679 F. Supp. 137 (D. Mass. 1988), aff’d,

Massachusetts v. Sec’y of Health & Hum. Servs., 899 F.2d 53 (1st

Cir. 1990) (enjoining the 1988 regulations); Planned Parenthood

Fed’n of Am. v. Bowen, 687 F. Supp. 540 (D. Colo. 1988), aff’d,

Planned Parenthood Federation of America v. Sullivan, 913 F.2d

1492 (10th Cir. 1990) (enjoining 1988 regulations on

constitutional grounds).

10 493 U.S. 956 (1990).

11 Standards of Compliance for Abortion-Related Services in

Family Planning Service Projects, 58 Fed. Reg. 7,462 (Feb. 5,

1993). The final rules were not adopted until 2000. 65 Fed. Reg.

41,270 (July 3, 2000).

18

to the more pro-abortion interpretation of §300a-6.

This rule change was also challenged in court.12

In 2019, HHS reversed course again, promulgating

regulations virtually identical to the 1988 regulations

upheld in Rust. A deluge of litigation followed,

including challenges from nearly half the states. The

lower courts split on the legality of the new

regulations, 13 notwithstanding Rust’s holding that

1988 regulations were a reasonable (and

constitutional) interpretation of §300a-6.

This Court granted review once again, Oregon v.

Cochran, 141 S. Ct. 1369 (2021), only to have HHS and

the challenging parties agree to dismiss the case early

in President Biden’s term. See Becerra v. Mayor of

12 Nat’l Fam. Plan. & Reprod. Health Ass’n v. Sullivan, No. 92-

935(CRR), 1992 U.S. Dist. LEXIS 9421 (D.D.C. July 1, 1992)

(enjoining interim rules until HHS complied with APA notice and

comment requirements), aff’d, Nat’l Fam. Plan. & Reprod.

Health Ass’n v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992).

13 See Fam. Plan. Ass’n of Me. v. United States HHS, 404 F. Supp.

3d 286 (D. Me. 2019) (upholding the 2019 regulations under

Chevron); Mayor & City Council of Balt. v. Azar, 392 F. Supp. 3d

602 (D. Md. 2019) (enjoining the 2019 regulations); Washington

v. Azar, 376 F. Supp. 3d 1119 (E.D. Wash. 2019) (same); Oregon

v. Azar, 389 F. Supp. 3d 898 (D. Or. 2019); California v. Azar, 385

F. Supp. 3d 960 (N.D. Cal. 2019).

The Court of Appeals for the Ninth Circuit reversed the

preliminary injunctions against the regulations granted in the

California, Oregon, and Washington lawsuits. California by &

through Becerra v. Azar, 950 F.3d 1067 (9th Cir. 2020) (rejecting

arguments that Rust was superseded by provisions in the ACA

and the annual HHS appropriations riders). The Court of

Appeals for the Fourth Circuit affirmed the injunction against

the regulations. Mayor of Baltimore v. Azar, 973 F.3d 258 (4th

Cir. 2020) (holding that the 2019 regulations were arbitrary and

capricious).

19

Baltimore, 141 S. Ct. 2618 (2021) (dismissing Oregon

v. Cochran and two other consolidated cases).

Predictably, HHS flip-flopped again, re-adopting the

2000 regulations.14 And yet again, litigation ensued,

involving challenges from twelve states. Ohio v.

Becerra, 577 F. Supp. 3d 678 (S.D. Ohio 2021), aff’d,

2022 U.S. App. LEXIS 3435 (6th Cir. Feb. 8, 2022).

Again, HHS’s policy reversal was upheld under

Chevron. Becerra, 557 F. Supp. at 688-90.

The law didn’t change, only HHS’s interpretation

of it. Content with HHS’s flip-flopping, Congress

abdicated its responsibility to clarify the statute.

Eleven lawsuits, ten appeals and two cert grants later,

the meaning of §300a-6 remains subject to change,

perhaps ad infinitum, as long the political parties

remain divided on the use of taxpayer funds to

facilitate abortion. The resulting staggering cost in

litigant and judicial resources alone counsels

jettisoning Chevron. See Jack M. Beerman, End the

Failed Chevron Experiment Now: How Chevron Has

Failed and Why It Can and Should Be Overruled, 42

Conn. L. Rev. 779, 850-51 (2010) (stating that Chevron

has “spawned an incredibly complicated regime that

serves only to waste litigant and judicial resources”).

Restoring the judiciary’s power to determine the

best meaning of an ambiguous statute would curtail

the ability of agencies do about-faces on how

ambiguous statutory provisions must be interpreted.

It would further enable “citizens to organize their

affairs with some assurance that the rug will not be

14 Ensuring Access to Equitable, Affordable, Client-Centered,

Quality Family Planning Services, 86 Fed. Reg. 56144, 56144

(Oct. 7, 2021) (to be codified at 42 C.F.R. pt. 59).

20

pulled from under them tomorrow, the next day, or

after the next election.” Gutierrez-Brizuela, 834 F.3d

at 1158 (Gorsuch, J., concurring); see also Guedes, 140

S. Ct. at 791 (Gorsuch, J., statement respecting denial

of cert.) (“And why should courts, charged with the

independent and neutral interpretation of the laws

Congress has enacted, defer to such bureaucratic

pirouetting?”).

Ten years ago, Chief Justice Roberts thought it

might “be a bit much” to describe the “growing power

of the administrative state” as “‘the very definition of

tyranny.’” See City of Arlington v. FCC, 569 U.S. 290,

315 (2013) (Roberts, C.J., dissenting) (citations

omitted). Respectfully, not anymore. With Congress

increasingly supine, and the executive branch

asserting ever bolder claims of the power to set

national policy, the specter of tyranny looms larger.

The federal judiciary is all that stands in the breach.

Eliminating the “powerful weapon,” id. at 314, of

Chevron deference is essential to ensuring that the

threat remains inchoate.

21

CONCLUSION

Amicus respectfully requests this Court to reverse

the D.C. Circuit and repudiate or overrule Chevron.

Respectfully submitted,

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

COLBY M. MAY

LAURA B. HERNANDEZ

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave. NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org